Citation Nr: 1301801
Decision Date: 01/16/13 Archive Date: 01/23/13
DOCKET NO. 12-25 613 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado
THE ISSUE
Entitlement to service connection for residuals of low back injury.
REPRESENTATION
Appellant represented by: Blinded Veterans Association
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The Veteran served on active duty from July 1949 to April 1953.
This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a March 2011 rating decision of the VA Regional Office in Salt Lake City, Utah. The case was certified to the Board by the Denver, Colorado RO.
Following review of the record, the appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002).
REMAND
The Veteran asserts that he injured his back in service and developed a chronic low back disorder leading to surgery for which service connection is warranted. In a statement dated in October 2010, the appellant contends that he injured his back during a hurricane at sea in 1951 or 1952, and that he has had periodic muscle spasms since. He related that since the ship had limited medical facilities, he obtained some "APC" tablets after the injury to treat his pain. The appellant stated that back pain continued after discharge from active duty and that he had a discectomy in 1967. He reported that he continued to have problems with the back.
Service treatment records are negative for any complaints pertaining to the back. Following the Veteran's claim for benefits received in September 2010, multiple unsuccessful attempts were made to retrieve medical records from Dr. Swindler and Ogden Regional Medical Center (formerly St. Benedict's Hospital) where the appellant reported undergoing surgery in 1967. [Of record is a statement of charges for unspecified services at St. Benedict's in January 1967.]
In 2010, the Veteran has submitted private clinical records from G. L. Momberger showing that he received treatment for low back symptoms diagnosed as lateral disc herniation and degenerative changes. D. Warden, M.D., was courtesy copied but there are no records from him.
In November 2011, S. M. Foote, DO, wrote that the Veteran had a history back strain in the military while helping another comrade during a hurricane. It was noted that the appellant reported being evaluated aboard ship and given "APCs" that helped his discomfort. History was rendered on this occasion that muscle spasms continued on and off during his military career and that after discharge, he was evaluated by Dr. Alvord who prescribed muscle relaxers. It was reported that the appellant's symptoms apparently worsened and that he underwent surgery by Dr. Swindler. Dr. Foote went on to say that the Veteran's back symptoms recurred and that he came under the care of Dr. Warden. Dr. Foote concluded the report by stating that with the Veteran's prior history and timeline of discomfort originating with injury aboard ship 60 years before and no further back injuries, "It is possible ... that [the Veteran's] chronic back problems and residual arthritis could have originated from injury sustained while in the military on the ship 60 years ago."
In November 2011, a shipmate recalled the Veteran injuring his back following a fall, and that he thereafter had periodic muscle spasms.
A letter dated in March 2011 was received from Ogden Regional Medical Center stating that they were unable to comply with the request for information because no treatment was shown at that facility for the dates of service requested (1967).
As noted above, however, there is a record of treatment received at St. Benedict's Hospital (now Ogden Regional Medical Center) in January 1967. The RO should thus resubmit a request for records to Ogden and attach a copy of the January 1967 statement of charges that may aid in the retrieval of further records.
In his October 2010 statement, the Veteran indicated that prior to 1967, he was treated by Dr. Rex Alford and by Dr. Warden in 1990 when he lost knee jerk in his left leg. It does not appear that he has submitted authorizations to retrieve these records from those physicians and he will be requested to do so.
The Board would point that to the Veteran that his claim is substantially compromised by the fact that there are no clinical records of back treatment until 1990, approximately 43 years after discharge from active duty. In a case such as this one, it would behoove the Veteran to provide additional information and/or authorization to retrieve clinical records from all providers who have treated him for any back disability between 1953 and 1990. The "duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Dusek v. Derwinski, 2 Vet.App. 519, 522 (1992), citing Wood v. Derwinski.
In this regard, the Veteran will be provided an opportunity to clarify and delineate all private, state and/or VA facilities from which he received treatment for his back since discharge from service in 1953 to the present. The representative is requested to assist the Veteran in presenting as clear a list as possible of all other providers and dates of treatment for which they wish VA to secure records. The Veteran is advised that in order to facilitate his claim, he should personally contact providers from whom he has received treatment for his back since discharge from service in 1953 to the present and submit such evidence to VA.
Finally, the record reflects that the Veteran has never had a VA examination for compensation purposes. The fulfillment of the VA's statutory duty to assist the Veteran includes requesting a contemporaneous and thorough VA medical examination when indicated, and providing a medical opinion that takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet.App. 221, (1991); Green v. Derwinski, 1 Vet.App. 121, 124.
Accordingly, the case is REMANDED for the following actions:
1. Contact the Veteran by letter and request that he provide authorizations with the names and addresses of all providers, to include any within the VA system, who treated him for back disability between 1953 and 1990, to include Drs. Alford and Warden. After securing the necessary releases, request this information and associate it with the claims folder, if not already of record.
Advise the Veteran that in addition to the above, he should also try to retrieve copies of clinical records from any provider who treated him for a back disorder and submit this information to VA.
2. The RO must make another request for records to Ogden Regional Medical Center for the Veteran's records. In so doing the RO should attach a copy of the January 1967 statement of charges from St. Benedict's Hospital, and specifically reference such treatment on the request for information.
3. After a reasonable time for receipt of the above, schedule the Veteran for a back by an appropriate VA physician. The claims folder, access to Virtual VA and a copy of this remand must be made available to the examiner. The examining physician must indicate whether or not the claims folder and Virtual VA were reviewed. All indicated tests and studies should be performed and clinical findings must be reported in detail. The examination report should reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc.
Based on a thorough review of the evidence of record and the physical examination findings, the examiner should provide an opinion with detailed and complete rationale as to whether it is at least as likely as not that any diagnosed back disability relates back to the reported injury in service in 1951 or 1952, or whether it is more likely that any current back disorder is of post service onset and unrelated to active duty. A complete rationale must be provided for any opinion offered.
4. The Veteran is hereby notified that pursuant to the provisions of 38 C.F.R. § 3.655 (2012), failure to cooperate by not providing more specific information or by attending a requested VA examination may result in an adverse determination.
5. After the development requested, the RO should review all examination reports to ensure that they are in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once.
6. Thereafter, the RO/AMC should readjudicate the claim for entitlement to service connection for a low back disability. If the benefit sought is not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case and be afforded the appropriate opportunity to respond thereto.
(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.)
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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DEREK R. BROWN
Veterans Law Judge, Board of Veterans Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).